We use cookies to customise content for your subscription and for analytics.If you continue to browse Lexology, we will assume that you are happy to receive all our cookies. For further information please read our Cookie Policy.

This post follows a previous post of November, 2011, discussing the trial decision in R. v. XI Technologies Inc., 2011 ABPC 313. That case involved a tragic incident at a company’s off-site Customer Appreciation Party during Stampede Week in 2007. The event, held at a hotel, included a “calf roping machine” activity that was suggested by the party planner retained for the event. A young software developer who was helping to operate the machine was struck in the head by a steel lever and later died from the injuries.

The employer faced two charges under the Alberta Occupational Health and Safety Act for failing to ensure, as far as it was reasonably practicable to do so, the health and safety of the worker and for failing to ensure that all equipment used at the work site would safely perform the function for which it was intended or designed.

The trial judge found the employer “not guilty” of the charges because it had raised a successful due diligence defence. The Crown appealed.

In his Reasons for Judgment on the appeal, the Alberta Court of Queen’s Bench judge held that while the trial judge correctly articulated the test for due diligence, including the fact that the analysis required an examination of foreseeability, in applying the evidence to the applicable tests, the trial judge made palpable and overriding errors in relation to her verdicts on both charges. The appeal judge allowed the appeal on both counts and entered convictions against the employer.

As to the ”general duty” charge, the appeal judge disagreed with the trial judge who concluded that the accident was not foreseeable. He instead found that the evidence “clearly shows that the potential danger of being struck by the lever upon premature release while reaching into the machine was a ‘reasonable prospect’”. He stated that the question is not whether the employer could foresee the accident happening in the way that it did happen, but whether a reasonable person would have foreseen the potential source of danger. He concluded that it was not the fact that the calf roping machine was operating improperly which attracted liability but, rather, it was the decision of the employer to allow its use to continue at the party once the potential danger associated with the method of loading the calf was known. The appeal judge concluded that a reasonable employer would have placed the calf roping machine off to the side and hung an “out of order” sign on it.

As to the second count regarding the alleged failure of the employer to ensure that the calf roping machine would safely perform the function for which it was intended or designed, the appeal judge disagreed with the trial judge’s conclusion that the company did all that it could do to ensure that the equipment would safely perform its function, having made clear its expectation that the professional event planner would arrange for only safe activities and the company depended on the planner’s expertise to provide only safe entertainment activities for its customers. The appeal judge did not have sympathy for the trial judge’s distinction between the circumstances of the employer in this case - a small family owned Technology Company – as compared to “the larger industrial enterprises typically before the courts as a result of industrial accidents.” Instead, the appeal judge stated that any reliance that the employer had placed upon the party planners became unrealistic once the issues with the lever were noted. As well, he held that a reasonable employer would have ensured that instructions and a demonstration on how to properly use the equipment were received to ensure that the employees were using the calf roping machine in a correct manner rather than handing an unfamiliar machine over to its untrained employees to operate.

This decision following appeal reinforces the high onus placed on employers by occupational health and safety legislation to reasonably ensure a safe and healthy working environment, including the requirement for proactive conduct on the part of the employer when hosting parties or client events, even at locations away from the employer’s workplace, which involve activities outside of the course and scope of the employer’s usual operations.